TMI Blog2011 (3) TMI 1800X X X X Extracts X X X X X X X X Extracts X X X X ..... dabad was previously owned by one M/s. Hirak Biotech Limited (The Company for short). The Company had, in course of its business, availed of certain bank loans. The Company did not repay dues to the Bank regularly. In addition to such Bank dues, the Company also had to discharge sales tax liability to the Sales Tax Department of the Government of Gujarat. Apparently, assessment proceedings for ascertaining and recovery of such sales tax dues were pending. During pendency of such proceedings, the property in question was purchased by the petitioner from creditor bank directly in discharge of the dues of the principal borrower i.e the Company. It may be noted that such sale was not through any public auction in terms of the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which are also produced on record. When the petitioner approached the department, she was informed vide communication dated 19.11.2010 that the property in question is under provisional attachment to secure the Government dues of the Company. 2. The petitioner has, therefore, challenged the said provisional attachment orders as well as communication dated 19.11.2010 in the present petition. 3. Counsel for the petitioner raised following contentions :- 1) That the power under Section 45 of the VAT Act to order provisions attachment vests with the Commissioner. In the present case, Deputy Commissioner could not have passed any order of provisional attachment. 2) That under Section 45 an order of provisional attachment can have e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been passed by the Assistant Commissioner since Section 45 of the Act authorises only Commissioner to pass such order. 5.2 It was contended that there is nothing on record to suggest that Commissioner has formed an opinion that provisional attachment as envisaged in Section 45 of the Act was necessary. 5.3 It was contended that no attachment proceedings were pending when provisional attachment order was passed. Authorities therefore, had no jurisdiction to exercise powers under Section 45 of the Act. 5.4 In support of his contention, the petitioner relied on decision of Division Bench of this Court in case of Baroda City Co-operative Bank ltd. v. The State of Gujarat reported in 2010 (3) GLR 2132, holding that unpaid dues of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question and such order has already lapsed due to passage of time and that therefore, prayers made in the petition has become infructuous, in the larger interest of justice, we have looked into the contentions raised since admittedly subsequently provisional attachment orders on the same premise and grounds have been passed and presently also provisional attachment continues. 8. Section 45 of the Act empowers the Commissioner to pass provisional attachment order in following terms : 45. Provisional attachment. (1) Where during the pendency of any proceedings of assessment or reassessment of turnover escaping assessment the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to the contention that power under sub-section(1) of Section 45 can be exercised only by the Commissioner, we find that such power has been delegated under an order dated 1.4.2006 in Assistant Commissioner of Commercial Tax. Provisional orders therefore, passed by the Assistant Commissioner did not lack competence. 12. When we find that Assistant Commissioner on available material on record prima facie believed that huge tax dues of M/s. Hirak Biotech ltd. have remained outstanding and when such assessment proceedings were pending, his satisfaction that provisional attachment was required to be ordered in terms of sub-section(1) of Section 45 of the Act, cannot be stated to be without any basis, particularly in absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in if situation so arises. Contention of the petitioner that upon completion of maximum period prescribed under Sub-section(2) of Section 45, no fresh order of provisional attachment could be passed, therefore cannot be accepted. 14. Rival contentions with respect to priority of the State dues is not arising in the present petition. The Division Bench judgement in case of Baroda City Co-operative Bank ltd. (supra), pertains to the attempted recovery of Sales Tax dues from the owner or a subsequent purchaser of the property. Bench delivered the judgement on the basis of provisions contained in Gujarat Sales Tax Act. Statutory provisions involved in the present case are different. Further, we are concerned with provisional attachment and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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